Temple v. Storch Trucking Co.

125 A.2d 297, 41 N.J. Super. 397, 1956 N.J. Super. LEXIS 572
CourtNew Jersey Superior Court Appellate Division
DecidedSeptember 13, 1956
StatusPublished
Cited by1 cases

This text of 125 A.2d 297 (Temple v. Storch Trucking Co.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Temple v. Storch Trucking Co., 125 A.2d 297, 41 N.J. Super. 397, 1956 N.J. Super. LEXIS 572 (N.J. Ct. App. 1956).

Opinion

Goldmann, S. J. A. D.

This is an appeal from an order of the Hudson County Court dated December 1, 1955, granting respondent’s motion for an order vacating and setting aside the rule for judgment originally entered in petitioner’s favor in the Workmen’s Compensation Bureau and filed in the office of the Clerk of Hudson County, and directing the County Clerk to expunge the entry of that judgment from his docket and records. Petitioner also appeals from that part of the order denying her motion to stay the proceedings in the County Court pending final adjudication by the United States District Court for the District of New Jersey of an action she had brought against respondent’s insurance carrier under the filed judgment for compensation, the complaint there alleging denial of due process of law in the courts of New Jersey. This phase of the appeal was only passingly referred to in petitioner’s brief and oral argument on appeal, supported by nothing more than the mere repetition of the argument that the denial of the request for a stay constituted a denial of due process.

An understanding of the involved and protracted course of this ease through our courts calls for a reproduction at this place of our unpublished per curiam opinion of November 4, 1954:

“The present phase of this long litigated workmen’s compensation proceeding represents an attempt to breathe life into an award long since judicially interred. The matter formally comes before us on an appeal from the Hudson County Court which granted respondent’s motion for an order relieving it from, and vacating and setting aside, the rule for judgment initially entered in the Workmen’s Com[401]*401pensation Bureau and docketed by petitioner in the Hudson County Clerk’s Office on May 9, 1951.

“Although, the appendix contains the County Court’s opinion [29 N. J. Super. 492] granting respondent’s application to expunge the judgment, it does not set out the order entered thereon. We overlook the omission and deal with the merits.

“On December 15, 1945 petitioner filed her dependent’s claim petition in the Workmen’s Compensation Bureau. Despondent company answered, there was a hearing, and thereafter rule for judgment was entered in petitioner’s favor on August 5, 1947. Petitioner claims the date of entry was July 24, 1947, of which more hereafter. On September 4, 1947 respondent appealed the award to the Hudson County Court of Common Pleas, and that court affirmed. The employer then applied for and obtained a writ of certiorari in the former New Jersey Supreme Court, shortly before the effective date of the new judicial system. The matter came on for argument before the Appellate Division on January 3, 1949 and resulted in a reversal of the Common Pleas judgment. Temple v. Storch Trucking Co., 2 N. J. Super. 146 (1949). The mandate on reversal was filed with the Clerk of the Hudson County Court on April 12, 1949. Petitioner in turn appealed to the Supreme Court which affirmed the judgment of the Appellate Division on October 24, 1949. 3 N. J. 42. The mandate on affirmance from the Supreme Court was filed with the Clerk of the Hudson County Court on January 31, 1950. On the same date there was filed with the clerk a judgment, entered by the same County Court judge who had originally affirmed the determination of the Bureau, reversing the determination and order of judgment of the former Hudson County Court of Common Pleas and directing that judgment of dismissal be entered in favor of respondent company.

“In the face of all this, counsel for petitioner on May 9, 1951 caused to be entered in the office of the Clerk of Hudson County, without notice to respondent, a true copy of the original rule for judgment entered in the Workmen’s Com[402]*402pensation Bureau. R. S. 34:15-58. Several months later respondent first learned of the docketing of the Bureau judgment when it sought to obtain a mortgage on certain of its properties. Respondent at once obtained an order staying execution and performance of any proceedings to enforce the rule for judgment pending disposition of its notice of motion, returnable before the Hudson County Court, for an order vacating and setting aside the judgment. This motion was supported by affidavit, to which were attached the opinions of the Appellate Division and Supreme Court above referred to. The application was resisted, petitioner’s counsel filing his opposing affidavit with annexed exhibits. The allegations of that affidavit constitute essentially the argument made in the brief filed with us. Respondent then filed its reply affidavit. The County Court, after considering all the affidavits and argument of counsel, granted respondent’s application to vacate and set aside, and to expunge from the Hudson County Clerk’s records, the original rule of judgment in the Bureau.

“Petitioner claims that the Bureau judgment is valid and enforceable; that the decisions of the Appellate Division and Supreme Court did not affect the judgment; that no judgment of any court was ever directed to the Bureau judgment of July 34, 1947, or was binding upon it; and that the County Court was without jurisdiction to vacate that judgment docketed in the county clerk’s office.

“We find no merit in any of these points. Petitioner makes much of the fact that the successive appeals heretofore taken referred to a rule for judgment in the Bureau dated August 5, 1947, whereas there was, in fact, no such judgment but only the one dated July 34, 1947. The reason for this alleged mis-reference to the date of the rule for judgment is not made clear in the record; it may be that although the deputy commissioner made his determination of facts and rule for judgment on July 34, 1947, it was not filed in the office of the secretary of the Workmen’s Compensation Bureau until August 5, 1947. It is the filing of the determination and rule for judgment in the office [403]*403of the secretary at Trenton that constitutes the entry of judgment. Brown v. Allied Plumbing & Heating Co., 130 N. J. L. 487 (E. & A. 1943); N. J. S. A. 34:15-58. The argument as to the wrong date reference is now raised for the first time. It was never mentioned in any of the proceedings up to and including the Supreme Court decision. It is perfectly clear that petitioner knew what judgment of the Bureau was being appealed to the Common Pleas, and later to the Appellate Division and Supreme Court, for admittedly there was only one rule for judgment in the Bureau that made any award to petitioner for the death of her husband. Counsel fox petitioner cannot be heard to complain about an alleged mis-reference to the date of the Bureau rule for judgment when, as the person who managed the litigation from first to last, he of all people would be the one to know just when the determination and rule for judgment of the deputy commissioner was filed with the secretary of the Bureau at Trenton.

“In order to support the argument that the original rule for judgment in the Bureau is still valid and enforceable, petitioner revives the same arguments as were raised in the Supreme Court. For example, petitioner contends that the appeal from the Bureau to the Common Pleas Court was mistakenly taken because the accident happened in New York and not in New Jersey, and therefore the review of the award should have been by writ of certiorari directed by the-former Supreme Court to the Bureau. The Supreme Court considered this argument on the merits, even though it was belatedly raised in that court, and resolved the matter against petitioner.

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125 A.2d 297, 41 N.J. Super. 397, 1956 N.J. Super. LEXIS 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/temple-v-storch-trucking-co-njsuperctappdiv-1956.